Town of Carrollton v. Town of North Carrollton

• Decision Date: 12 July 1915
• Docket Number: 18151
• Citation: 109 Miss. 494,69 So. 179
• Court: Mississippi Supreme Court
• Parties: TOWN OF CARROLTON v. TOWN OF NORTH CARROLTON

69 So. 179

109 Miss. 494

TOWN OF CARROLTON v. TOWN OF NORTH CARROLTON

No. 18151

Supreme Court of Mississippi

July 12, 1915

APPEAL from the chancery court of Carroll county. HON. A. Y WOODWARD, Chancellor.

For former opinion see 68 So. 483. On suggestion of error.

Suggestion of error overruled.

Hughston & McEachern and T. O. Yewell, for appellant.

S. E Turner and Monroe McClurg, for appellee.

STEVENS J. SMITH, C. J. (specially concurring).

OPINION

STEVENS, J.

In view of the earnest insistence of counsel for appellees that the opinion of the court is erroneous and because of the manifest public interest involved, we are justified in a further elaboration of the court's views of this case.

It would seem, from the able argument of counsel who filed the suggestion of error, that the opinion of the court in this case has been misinterpreted. It was never the intention of the court, by any expression in its opinion, to hold that the freeholders of the territory outside of the corporate limits of the town of Carrollton are without remedy. It is stated by counsel:

"That the people in the village of North Carrollton and their neighbors on that side of the creek would not have put themselves at the mercy of the authorities of Carrollton. Are we to depend upon the legislature to relieve us in the face of the powerful influences now combating this case?"

It is true that one statement in the opinion may have misled counsel. The statement referred to is as follows:

"The only statute which confers power to eliminate territory from a separate school district is chapter 129, Laws 1912, by which a limited power so to do is conferred upon 'the board of aldermen of any municipality of this state constituting a separate school district.'"

It was not the intention of this language to hold that chapter 129, Laws 1912, simply conferred a discretionary power upon the board of aldermen of the municipality of old Carrollton. On the contrary, we deem it necessary to the ends of justice in this case to say now that we regard the statute in question as mandatory whenever a "petition of a majority of the resident freeholders of the territory proposed to be released" is duly presented to the board of aldermen of the town of Carrollton. The statute in question expressly provides that the board of alderman "may release from such district any part of the added territory lying outside of the corporate limits on petition of a majority of the resident freeholders of the territory proposed to be released." To this point in the language of the statute the only condition prescribed is the presentation of the necessary petition. The statute then expressly provides that:

"An order shall be entered on the minutes of the board of aldermen describing that part of the added territory proposed to be released."

In construing this statute we must certainly keep in view the relief it is obviously designed to afford. By previous statutory enactments the board of aldermen of a municipality constituting a separate school district had the power to embrace within such separate school district territory lying outside of the corporate limits, and the only condition required was the assent of the "majority of the resident freeholders of the territory proposed to be added, and the approval of the municipal authorities." It required the will or assent of the majority to come into the district, and also the will or assent of the municipal authorities. When such a separate school district is organized, however, members of the board of aldermen had exclusive supervision over the location and construction of the school house or houses, and in the levy of taxes necessary for the proper maintenance of the schools, as well as for the erection and repair of school buildings, and to this end they were empowered to issue bonds. It was obviously therefore, the purpose of the legislature by chapter 129, Laws of 1912, to provide a full, adequate, and speedy method of procedure by which the freeholders of the territory outside of the corporate limits might be released whenever, by any circumstance, the majority felt disposed so to do. It was never the purpose of the legislature by this act in question, to vest a mere discretion in the board of aldermen, or to leave it within the power of the board of aldermen to hold the outlying territory for an indefinite period against the will of the freeholders involved. To so hold would be to convict the legislature of an effort to justify "taxation without representation." The authorities are uniform in construing the word "may" as imperative or mandatory in statutes of this character. In Cyc. vol. 26, p. 1591, it is stated that the word "may"--

"has been properly construed as employed in an imperative or mandatory sense when the legislature imposes a positive duty and not a discretion or where a public duty is involved, where a right is given or a duty imposed, where the public interest or where a matter of public policy and not merely a private right is involved, . . . or where the statute imposes a duty or confers a power on a public officer for public purposes."

The authorities are collated in the footnotes in Cyc., and likewise in Words and Phrases, vol. 5, pp. 4421, 4422. It is stated in Words and Phrases, p. 4421:

"The word 'may' in a statute will be construed to mean 'shall' whenever the rights of the public or third persons depend on the exercise of the power or the performance of the duty to which it refers, and such is its meaning in all cases where the public interest and rights are concerned, or a duty is imposed on public officers, and the public or third persons...